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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
AGREEMENT, effective as of the 21st day of December, 2000 by and between i3
MOBILE, INC., a Delaware corporation with principal executive offices at 000
Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("i3 Mobile"), and XXX XXXXXX,
residing at 000X Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 ("Xxxxxx").
W I T N E S S E T H :
WHEREAS, i3 Mobile is desirous of employing Xxxxxx as Chief Technology Officer
of i3 Mobile and Xxxxxx is desirous of serving in such capacity for i3 Mobile,
all upon the terms and subject to the conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto, intending to be legally bound, agree as follows:
1. Employment.
i3 Mobile agrees to employ Xxxxxx, and Xxxxxx agrees to be employed by
i3 Mobile, upon the terms and subject to the conditions of this Agreement.
2. Term.
The employment of Xxxxxx by i3 Mobile as provided in Section 1 will be
for a period of two (2) years commencing on the date hereof, unless sooner
terminated as hereinafter provided (the "Term"), and shall automatically renew
from year to year thereafter unless either party gives at least ninety (90) days
prior written notice of termination.
3. Duties; Best Efforts; Indemnification.
Xxxxxx shall serve as Chief Technology Officer of i3 Mobile and shall
perform, subject to the policy directions of the President and Chief Executive
Officer and the Board of Directors of i3 Mobile, such duties as are customarily
performed by the Chief Technology Officer. Xxxxxx shall also have such other
powers and duties as may be from time to time prescribed by the President and
Chief Executive Officer or the Board of Directors of i3 Mobile, provided that
the nature of Xxxxxx'x xxxxxx and duties so prescribed shall not be inconsistent
with Xxxxxx'x position and duties hereunder.
Xxxxxx shall devote his business time, attention and energies to the
business and affairs of i3 Mobile, shall use his best efforts to advance the
best interests of i3 Mobile and shall not, during the Term, be actively engaged
in any other business activity, whether or not such business activity is pursued
for gain, profit or other pecuniary advantage, that will interfere with the
performance by Xxxxxx of his duties hereunder or Xxxxxx'x availability to
perform such duties or that will adversely affect, or negatively reflect upon,
i3 Mobile.
Subject to the provisions of i3 Mobile's Certificate of Incorporation
and Bylaws, each as amended from time to time, i3 Mobile shall indemnify Xxxxxx
to the fullest extent permitted by the General Corporation Law of the State of
Delaware, as amended from time to time, for all amounts (including, without
limitation, judgments, fines, settlement payments, expenses and attorney's fees)
actually and reasonably incurred or paid by Xxxxxx on a when- and as-incurred
basis in connection with any action, suit, investigation or proceeding arising
out of or relating to the performance by Xxxxxx of services for, or the acting
by Xxxxxx as a director, officer, or employee of, i3 Mobile, or any other person
or enterprise at i3 Mobile's request if Xxxxxx acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
i3 Mobile, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. i3 Mobile shall use its
best efforts to obtain and maintain in full force and effect during the Term
directors' and officers' liability insurance policies providing full and
adequate protection to Xxxxxx for his capacity, provided that the Board of
Directors of i3 Mobile shall have no obligation to purchase such insurance if,
in its opinion, coverage is available only on unreasonable terms. Xxxxxx agrees
that, if it is finally judicially determined or finally determined by an
arbitrator that he is not or was not entitled to any amounts paid on his behalf
or for which he has been
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reimbursed under this third paragraph of this Section 3 by virtue of having
failed to have met the standards set forth in the first sentence of this third
paragraph of this section 3, Xxxxxx shall promptly reimburse i3 Mobile for such
amounts.
4. Place of Performance.
In connection with his employment by i3 Mobile, Xxxxxx shall be based at
the principal executive offices of i3 Mobile which shall be in the New York
Metropolitan area.
5. Compensation.
(a) Base Salary. i3 Mobile shall pay Xxxxxx a base salary (the "Base
Salary") at a rate of not less than $200,000 per annum, payable in equal
semi-monthly installments during the Term. The President and Chief Executive
Officer of i3 Mobile at least annually will review the Base Salary and other
compensation during the Term with a view to increase thereof based upon then
prevailing industry salary scales for equivalently valued businesses for the
Chief Technology Officer position, Xxxxxx'x performance, the performance of i3
Mobile, inflation and other relevant factors.
(b) Out-of-Pocket Expenses. i3 Mobile shall promptly pay to Xxxxxx the
reasonable expenses incurred by him in the performance of his duties hereunder,
including, without limitation, those incurred in connection with business
related travel or entertainment, or, if such expenses are paid directly by
Xxxxxx, shall promptly reimburse him for such payment, provided that Xxxxxx
properly accounts therefor in accordance with i3 Mobile's policy. i3 Mobile
shall provide Xxxxxx with corporate credit and phone cards to be used with
respect to the foregoing expenses.
(c) Participation in Benefit Plans. Xxxxxx shall be eligible to participate
in the current i3 Mobile health, accident, life and disability insurance,
pension, profit sharing, stock option, stock purchase plans or arrangements.
Xxxxxx shall also be entitled to participate in any other employee benefit plan
or arrangement made available in the future by i3 Mobile to its executives and
key management employees.
(d) Vacation. Xxxxxx shall be entitled to paid vacation days in each
calendar year determined by i3 Mobile from time to time, in accordance with i3
Mobile's standard vacation policy, prorated in any calendar year during which
Xxxxxx is employed hereunder for less than an entire year in accordance with the
number of days in such year during which he is so employed. Xxxxxx shall also be
entitled to all paid holidays given by i3 Mobile to its executives and key
management employees
(e) Incentive Compensation. i3 Mobile agrees to pay Xxxxxx a bonus (the
"Bonus") which shall be determined by the President and Chief Executive Officer
of i3 Mobile, in addition to and separate from his Base Salary and subject to
the achievement of certain mutually agreed upon performance goals, in an amount
up to one-third (1/3) of his Base Salary. Xxxxxx shall be entitled to the Bonus
on a pro-rata basis for partial achievement of the performance goals.
6. Termination.
Xxxxxx'x employment hereunder shall be terminated upon Xxxxxx'x death
and may be terminated as follows:
(a) By i3 Mobile for "Cause." For purposes of this Agreement, a
termination for Cause shall occur if Xxxxxx has (i) willfully failed to comply
with any of the material terms of this Agreement, (ii) willfully and repeatedly
failed to perform his duties hereunder, (iii) engaged in gross misconduct
materially injurious to i3 Mobile or (iv) been convicted of, or pleaded nolo
contendere to, a felony or a crime of moral turpitude; provided, however, that
Xxxxxx shall receive thirty (30) days' advance written notice specifying the
actions constituting Cause and Xxxxxx shall not have cured the actions
constituting Cause during such thirty (30) day period.
(b) By i3 Mobile due to Xxxxxx'x "Disability." For purposes of this
Agreement, a termination for Disability shall occur (i) upon the thirtieth
(30th) day after i3 Mobile has provided a written termination notice to Xxxxxx
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supported by a written statement from a reputable independent physician to the
effect that Xxxxxx shall have become so incapacitated as to be unable to resume,
within the ensuing twelve (12) months, his employment hereunder by reason of
physical or mental illness or injury, or (ii) upon rendering of a written
termination notice by i3 Mobile after Xxxxxx has been unable to substantially
perform his duties hereunder for six (6) consecutive months or for nine (9)
months in any twelve (12) month period (exclusive of any vacation permitted
under Section 5(f) hereof) by reason of any physical or mental illness. For
purposes of this Section 6(b), Xxxxxx agrees to make himself available and to
cooperate in any reasonable examination by a reputable independent physician
retained by i3 Mobile.
(c) By Xxxxxx for "Good Reason upon Change in Control." For purposes of
this Agreement, "GOOD REASON" shall mean any of the following that occurs
coincident with or following a Change in Control, if not cured and corrected by
i3 Mobile or its successor within ten business days after written notice thereof
by Xxxxxx to i3 Mobile or its successor: (i) any change in Xxxxxx'x title or
position that constitutes a material diminution in authority as compared to the
authority of Xxxxxx'x title or position immediately prior to the occurrence of
the Change in Control; (ii) any material reduction in the Xxxxxx'x annual base
salary as in effect on the effective date of the Change in Control; (iii) the
relocation of the principal executive offices of i3 Mobile in excess of fifty
(50) miles from their present location not consented to by Xxxxxx, or (iv) a
substantial diminution in the Xxxxxx'x duties and responsibilities (other than a
change due to Xxxxxx'x Total and Permanent Disability or as an accommodation
under the Americans With Disabilities Act); provided, however, that no
diminution of title, position, duties or responsibilities shall be deemed to
occur solely because i3 Mobile becomes a subsidiary of another corporation or
entity or because there has been a change in the reporting hierarchy incident
thereto involving Xxxxxx. "CHANGE IN CONTROL" means: (i) the effective date of
any merger, share exchange, consolidation or other reorganization or business
combination of i3 Mobile if immediately after such transaction either (A)
persons who were directors of i3 Mobile immediately prior to such transaction do
not constitute at least a majority of the directors of the surviving entity, or
(B) persons who hold a majority of the outstanding voting securities entitled to
vote generally in the election of directors of the surviving entity are not
persons who held a majority of the voting capital stock of i3 Mobile immediately
prior to such transaction; (ii) the closing of a sale or conveyance of all or
substantially all of the assets of i3 Mobile; (iii) an acquisition (other than
from i3 Mobile) in a transaction or a series of related transactions by any
person, entity or "group," within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934 (the "EXCHANGE ACT"), (excluding for this
purpose, (A) i3 Mobile or its subsidiaries, (B) any employee benefit plan of i3
Mobile or its subsidiaries which acquires beneficial ownership of voting
securities of i3 Mobile, (C) an underwriter temporarily holding securities
pursuant to an offering of such securities, or (D) any corporation owned,
directly or indirectly, by the stockholders of i3 Mobile in substantially the
same proportions as their ownership of the then outstanding voting securities of
i3 Mobile entitled to vote generally in the election of directors) of beneficial
ownership, within the meaning of Rule 13d-3 promulgated under the Exchange Act,
of 50% or more of either the then outstanding shares of common stock or the
combined voting power of i3 Mobile's then outstanding voting securities entitled
to vote generally in the election of directors; (iv) individuals who were the
Board's nominees for election as directors immediately prior to a meeting of the
stockholders of i3 Mobile involving an actual or threatened election contest
relating to the election of the directors of i3 Mobile, as such terms are used
in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act, cease to
constitute a majority of the Board following the election; or (v) the
dissolution or liquidation of i3 Mobile.
7. Compensation upon Termination.
(a) In the event of the termination of Xxxxxx'x employment as a result of
Xxxxxx'x death, i3 Mobile shall (i) pay to Xxxxxx'x estate his Base Salary and
Bonus through the date of his death and (ii) for the longer of twelve (12)
months following his death or the balance of the Term (as if such termination
had not occurred) provide continuation coverage to the members of Xxxxxx'x
family under all major medical and other health, accident, life or other
disability plans and programs in which such family members participated
immediately prior to his death.
(b) In the event of the termination of Xxxxxx'x employment by i3 Mobile for
Cause or by Xxxxxx other than for Good Reason upon Change in Control, i3 Mobile
shall pay to Xxxxxx his Base Salary and accrued Bonus through the date of his
termination, and Xxxxxx shall have no further entitlement to any other
compensation or benefits from i3 Mobile.
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(c) In the event of the termination of Xxxxxx'x employment by i3 Mobile due
to Disability, i3 Mobile shall pay to Xxxxxx his Base Salary and accrued Bonus
through the date of his termination. In addition, for twelve (12) months
following any such termination, i3 Mobile shall (i) continue to pay Xxxxxx the
Base Salary in effect at the time of such termination less the amount, if any,
then payable to Xxxxxx under any disability benefits of i3 Mobile and (ii)
provide Xxxxxx continuation coverage under all major medical and other health,
accident, life or other disability plans and programs in which Xxxxxx
participated immediately prior to such termination.
(d) In the event that Xxxxxx'x employment is terminated (i) by i3 Mobile
other than (A) as a result of Xxxxxx'x death or (B) for reasons specified in
Section 6(a) or (b) or (ii) by Xxxxxx for Good Reason upon Change in Control, i3
Mobile shall continue to pay to Xxxxxx his Base Salary and Bonus for six (6)
months following any such termination and provide Xxxxxx continuation coverage
under all major medical and other health, accident, life or other disability
plans or programs in which Xxxxxx participated immediately prior to such
termination for the same period. Notwithstanding the foregoing, the amounts
otherwise payable to Xxxxxx pursuant to this Section 7(d) shall be subject to
reduction (but not below zero) to the extent determined necessary by i3 Mobile
to prevent any payments or benefits to or for the benefit of Xxxxxx (whether
pursuant to this Agreement or any other plan, arrangement or agreement) from
being treated as a "parachute payment" under Section 280G of the Internal
Revenue Code of 1986, as amended. In the event that Xxxxxx'x employment is
terminated by Xxxxxx for Good Reason upon Change in Control, all stock options
and other equity incentive awards granted to Xxxxxx by i3 Mobile shall
immediately fully vest on an accelerated basis and be exercisable for a 30-day
period following the occurrence of the event comprising Good Reason upon Change
in Control.
(e) If Xxxxxx disputes the termination of his employment by i3 Mobile
pursuant to Section 6(a) or 6(b) herein and such dispute results in a final
determination to the effect that i3 Mobile did not have a proper basis for such
termination, i3 Mobile shall promptly pay to Xxxxxx all payments Xxxxxx would
have been entitled to receive had his employment hereunder had not been
improperly terminated; provided, however, that any payments or benefits under
this Section 7(e) shall be reduced by the amount of any payments or benefits
provided under any other provision of Section 7 hereof.
(f) The continuation coverage under any major medical and other health,
accident, life or other disability plans and programs for the periods provided
in Section 7(a), 7(c) and 7(d) shall be provided (i) at the expense of i3 Mobile
and (ii) in satisfaction of i3 Mobile's obligation under Section 4980B of the
Internal Revenue Code (and any similar state law) with respect to the period of
time such benefits are continued hereunder.
(g) This Section 7 sets forth the only obligations of i3 Mobile with respect
to the termination of Xxxxxx'x employment with i3 Mobile, and Xxxxxx
acknowledges that, upon the termination of his employment, he shall not be
entitled to any payments or benefits which are not explicitly provided herein.
8. Covenant Regarding Inventions and Copyrights.
Xxxxxx shall disclose promptly to i3 Mobile any and all inventions,
discoveries, improvements and patentable or copyrightable works initiated,
conceived or made by him, either alone or in conjunction with others, during the
Term and related to the business or activities of i3 Mobile and he assigns all
of his interest therein to i3 Mobile or its nominee; whenever requested to do so
by i3 Mobile, Xxxxxx shall execute any and all applications, assignments or
other instruments which i3 Mobile shall deem necessary to apply for and obtain
letters patent or copyrights of the United States or any foreign country, or
otherwise protect i3 Mobile's interest therein. These obligations shall continue
beyond the conclusion of the Term with respect to inventions, discoveries,
improvements or copyrightable works initiated, conceived or made by Xxxxxx
during the Term and shall be binding upon Xxxxxx'x assigns, executors,
administrators and other legal representatives.
9. Protection of Confidential Information.
Xxxxxx acknowledges that he has been and will be provided with
information about, and his employment by i3 Mobile will, throughout the Term,
bring him into close contact with, many confidential affairs of i3 Mobile and
its subsidiaries, including proprietary information about costs, profits,
markets, sales, products, key personnel, pricing policies, operational methods,
technical processes and other business affairs and methods, plans for future
developments and other information not readily available to the public, all of
which are highly confidential and proprietary and all of which were developed by
i3 Mobile at great effort and expense. Xxxxxx
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further acknowledges that the services to be performed by him under this
Agreement are of a special, unique, unusual, extraordinary and intellectual
character, that the business of i3 Mobile will be conducted throughout the world
(the "Territory"), that its services will be marketed throughout the Territory,
that i3 Mobile competes and will compete in all of its business activities with
other organizations which are located in any part of the Territory and that the
nature of the relationship of Xxxxxx with i3 Mobile is such that Xxxxxx is
capable of competing with i3 Mobile from nearly any location in the Territory.
In recognition of the foregoing, Xxxxxx covenants and agrees during the Term and
for a period of five (5) years thereafter:
(i) That he will keep secret all confidential matters of i3 Mobile and not
disclose them to anyone outside of i3 Mobile, either during or after the Term,
except with i3 Mobile's prior written consent or, if during the Term, in the
performance of his duties hereunder, Xxxxxx makes a good faith determination
that it is the best interest of i3 Mobile and to disclose such matters;
(ii) That he will not make use of any such confidential matters for his own
purposes or the benefit of anyone other than i3 Mobile; and
(iii) That he will deliver promptly to i3 Mobile on termination of this
Agreement, or at any time i3 Mobile may so request, all confidential memoranda,
notes, records, reports and other confidential documents (and all copies
thereof) relating to the business of i3 Mobile, which he may then possess or
have under his control.
10. Restriction on Competition, Interference and Solicitation.
In recognition of the considerations described in Section 9 hereof,
Xxxxxx covenants and agrees that, during the Term and for a period of one (1)
year or such longer period of time during which Xxxxxx is continuing to receive
compensation from i3 Mobile after such termination, Xxxxxx will not, directly or
indirectly, (A) enter into the employ of, or render any services to, any person,
firm or corporation engaged in any business directly competitive with the
business of i3 Mobile in any part of the Territory in which i3 Mobile is
actively engaged in business on the date of termination; (B) engage in any such
business for his own account; (C) become interested in any such business as an
individual, partner, shareholder, creditor, director, officer, principal, agent,
employee, trustee, consultant, advisor, franchisee or in any other relationship
or capacity; or (D) interfere with i3 Mobile's relationship with, or endeavor to
employ or entice away from i3 Mobile any person, firm, corporation, governmental
entity or other business organization who or which is or was an employee,
customer or supplier of, or maintained a business relationship with, i3 Mobile
at any time (whether before or after the Term), or which i3 Mobile has solicited
or prepared to solicit; provided, however, that the provisions of clause (A)
shall not be deemed to preclude Xxxxxx from engagement by a corporation some of
the activities of which are competitive with the business of i3 Mobile if
Xxxxxx'x engagement does not relate, directly or indirectly, to such competitive
business, and nothing contained in this Section 10 shall be deemed to prohibit
Xxxxxx from acquiring or holding, solely for investment, publicly traded
securities of any corporation some of the activities of which are competitive
with the business of i3 Mobile so long as such securities do not, in the
aggregate, constitute more than five percent (5%) of any class or series of
outstanding securities of such corporation.
11. Specific Remedies.
For purposes of Sections 8, 9 and 10 of this Agreement, references to i3
Mobile shall include all current and future majority-owned subsidiaries of i3
Mobile and all current and future joint ventures in which i3 Mobile may from
time to time be involved. It is understood by Xxxxxx and i3 Mobile that the
covenants contained in this Section 11 and in Sections 8, 9 and 10 hereof are
essential elements of this Agreement and that, but for the agreement of Xxxxxx
to comply with such covenants, i3 Mobile would not have agreed to enter into
this Agreement. i3 Mobile and Xxxxxx have independently consulted with their
respective counsel and have been advised concerning the reasonableness and
propriety of such covenants with specific regard to the nature of the business
conducted by i3 Mobile and all interests of i3 Mobile. Xxxxxx agrees that the
covenants of Sections 8, 9 or 10 hereof are reasonable and valid. If Xxxxxx
commits a breach of any of the provisions of Sections 8, 9 or 10 hereof, such
breach shall be deemed to be grounds for termination for Cause. In addition,
Xxxxxx acknowledges that i3 Mobile may have no adequate remedy at law if he
violates any of the terms hereof. Xxxxxx therefore understands and agrees that
i3 Mobile shall have (i) the right to have such provisions specifically enforced
by any court having equity jurisdiction, it being acknowledged and agreed that
any such breach will cause irreparable injury to i3 Mobile and that money
damages will not provide an adequate remedy to i3 Mobile, and (ii) the right
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to require Xxxxxx to account for and pay over to i3 Mobile all compensation,
profits, monies, accruals, increments and other benefits (collectively
"Benefits") derived or received by Xxxxxx as a result of any transaction
constituting a breach of any of the provisions of Sections 8, 9 or 10 and Xxxxxx
hereby agrees to account for and pay over such Benefits to i3 Mobile.
12. Independence, Severability and Non-Exclusivity.
Each of the rights enumerated in Sections 8, 9 or 10 hereof and the
remedies enumerated in Section 11 hereof shall be independent of the others and
shall be in addition to and not in lieu of any other rights and remedies
available to i3 Mobile at law or in equity. If any of the covenants contained in
Sections 8, 9 or 10, or any part of any of them, is hereafter construed or
adjudicated to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants or right or remedies which shall be given
full effect without regard to the invalid portions. The parties intend to and do
hereby confer jurisdiction to enforce the covenants contained in Section 8, 9 or
10 and the remedies enumerated in Section 11 upon the federal and state courts
of Connecticut sitting in Fairfield County. If any of the covenants contained in
Sections 8, 9 or 10 is held to be invalid or unenforceable because of the
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall be the power to reduce the duration
and/or area of such provision and in its reduced from said provision shall then
be enforceable. No such holding of invalidity or unenforceability in one
jurisdiction shall bar or in any way affect i3 Mobile's right to the relief
provided in Section 11 or otherwise in the courts of any other state or
jurisdiction within the geographical scope of such covenants as to breaches of
such covenants in such other respective states or jurisdictions, such covenants
being, for this purpose, severable into diverse and independent covenants.
13. Disputes. If i3 Mobile or Xxxxxx shall dispute any termination of Xxxxxx'x
employment hereunder or if a dispute concerning any payment hereunder shall
exist:
(a) either party shall have the right (but not the obligation), in addition
to all other rights and remedies provided by law, to compel binding, enforceable
and non-appealable arbitration of the dispute in the City of New York under the
rules of the American Arbitration Association by giving written notice of
arbitration to the other party within thirty (30) days after notice of such
dispute has been received by the party to whom notice has been given; and
(b) if such dispute (whether or not submitted to arbitration pursuant to
Section 13(a) hereof) results in a determination that (i) i3 Mobile did not have
the right to terminate Xxxxxx'x employment under the provisions of this
Agreement or (ii) the position taken by Xxxxxx concerning payments to Xxxxxx is
correct, i3 Mobile shall promptly pay, or if theretofore paid by Xxxxxx, shall
promptly reimburse Xxxxxx for, all costs and expenses (including reasonable
attorneys' fees) reasonably incurred by Xxxxxx in connection with such dispute.
14. Successors; Binding Agreement.
In the event of a future disposition by i3 Mobile (whether direct or
indirect), by sale of assets or stock, merger, consolidation or otherwise of all
or substantially all of its business and/or assets in a transaction to which
Xxxxxx consents, i3 Mobile will require any successor, by agreement in form and
substance satisfactory to Xxxxxx, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that i3 Mobile would be
required to perform if no such disposition had taken place. This Agreement and
all rights of Xxxxxx hereunder shall inure to the benefit of, and be enforceable
by, Xxxxxx'x personal or legal representatives, executors, administrators,
administrators cta, successors, heirs, distributees, devisees and legatees. If
Xxxxxx should die while any amount would still be payable to him hereunder if he
had continued to live, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to Xxxxxx'x estate.
15. Notices.
All notices, consents and other communications required or permitted to
be given by any party hereunder shall be in writing (including telecopy or other
similar writing) and shall be given be personal delivery, certified or
registered mail, postage prepaid, or telecopy (or other similar writing) as
follows:
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To i3 Mobile: 000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: President and Chief Executive Officer
Telecopy: (000) 000-0000
To Xxxxxx: 000X Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
or at such other address or telecopy number (or other similar number) as either
party may from time to time specify to the other. Any notice, consent or other
communication required or permitted to be given hereunder shall have been deemed
to be given on the date of mailing, personal delivery or telecopy or other
similar means (provided the appropriate answer back is received) thereof and
shall be conclusively presumed to have been received on the second business day
following the date of mailing or, in the case of personal delivery or telecopy
or other similar means, the day of delivery thereof, except that a change of
address shall not be effective until actually received.
16. Modifications and Waivers.
No term, provision or condition of this Agreement may be modified or
discharged unless such modification or discharge is authorized by the President
and Chief Executive Officer or Board of Directors of i3 Mobile and is agreed to
in writing and signed by Xxxxxx. No waiver by either party hereto of any breach
by the other party hereto of any term, provision or condition of this Agreement
to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
17. Entire Agreement.
This Agreement constitutes the entire understanding between the parties
hereto relating to the subject matter hereof, superseding all negotiations,
prior discussions, preliminary agreements and agreements relating to the subject
matter hereof made prior to the date hereof.
18. Law Governing.
Except as otherwise explicitly noted, this Agreement shall be governed
by and construed in accordance with the laws of the State of Connecticut
(without giving effect to the principles of conflicts of law).
19. Invalidity.
Except as otherwise specified herein, the invalidity or unenforceability
of any term or terms of this Agreement shall not invalidate, make unenforceable
or otherwise affect any other term of this Agreement which shall remain in full
force and effect.
20. Headings.
The headings contained in this Agreement are for reference purposes only
and shall not affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year set forth above.
i3 MOBILE, INC.
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By: /s/ Xxxx X. Lack
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Xxxx X. Lack
President and Chief Executive Officer
/s/ Xxx Xxxxxx
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Xxx Xxxxxx
